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July 14, 2004

Thoughts and holdings on Blakely retroactivity

Figuring out what Blakely means for on-going cases is, of course, critically important for courts and practitioners right now. But also extremely consequential is whether Blakely might have retroactive application. Though the Supreme Court limited the retroactive application of its Ring holding in Schriro on the same day it decided Blakely (background here), in that case there was no question about the application of the proof beyond a reasonable doubt standard (see footnote 1 of the Court's opinion); Schriro only concerned retroactive application of the jury right. Consequently, a number of commentators have astutely noted that Schriro does not conclusively foreclose retroactive application of Blakely. Also recall that Justice O'Connor stated in her Blakely dissent that "all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack." Blakely, slip. op. at 11 (O'Connor, J., dissenting).

Despite viable arguments about Blakely's retroactivity, most commentators take the (slightly cynical) view that courts will seek to limit retroactivity simply because the consequences of giving Blakely retroactive effect could be so extreme. (Recall Justice O'Connor's footnote suggesting that well over 200,000 cases in the federal system alone could be impacted if Blakely was just made retroactive back to when Apprendi was decided in 2000.) I generally agree with this legal realist perspective that courts, worried about a flood of habeas petitions, will try to limit the reach of Blakely (although, of course, the same logic also supported the widely held belief that the Supreme Court would never extended Apprendi to guideline enhancements in the Blakely decision itself).

Of course, last week we already had evidence of court efforts to limit the retroactive reach of Blakely when the Eleventh Circuit, In re Dean, held that Blakely cannot form the basis for authorizing a second or successive habeas filing (background here). And I have now come across another example of a court speaking to Blakely's possible retoractivity. In State v. Burch, 2004 WL 1557822 (Minn. App. July 13, 2004), an unpublished intermediate appellate court state case, we get this noteworthy discussion of the retoractivity issue:

Although Blakely, which is based on Apprendi v. New Jersey, 530 U.S. 466 (2000), may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision, appellant has failed to make a showing that Blakely will affect sentences, such as his sentence, that were final before Apprendi was decided. This court has held that Apprendi does not apply retroactively on collateral review, including postconviction. State v. Meemken, 662 N.W.2d 146, 150 (Minn.App.2003). See Schriro v. Summerlin, 72 U.S.L.W. 4561, 4563 (U.S. June 24, 2004) (stating that the holding of Ring v. Arizona, 536 U.S. 584 (2000), a case which reinforces the Apprendi requirement that a jury find any aggravating facts that lead to a greater sentence, is properly classified as procedural, and therefore does not apply retroactively to cases already final on direct review). Therefore, absent any authority that Blakely applies to appellant's sentence, we decline to address this issue.

Importantly, though this decision refuses to consider the applicability of Blakely to pre-Apprendi cases, it also states that Blakely "may have implications for upward departures from the Minnesota Sentencing Guidelines imposed after the Apprendi decision."

July 14, 2004 at 08:33 AM | Permalink

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I am a student conducting a research assignment for my summer associate position. In my research this morning, I stumbled across another decision discussing "Blakely" and retroactivity under 18 U.S.C. Sec. 2255. Here is the pertinent language and the citation:

"That then dispatches all aspects of Traeger's motion save one: the newest ground he seeks to advance--an attempted challenge to his sentence based on the recently decided Blakely case. That recently added challenge looks not to notions of equitable tolling, but rather to a claimed restarting of the Section 2255 limitations clock on the date that Blakely was decided. To that end Traeger must rely on that date qualifying under this alternative subdivision of Section 2255:

the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. [*10]


"Just to quote that provision, however, is to confirm its inapplicability. Blakely itself did not announce that it was applicable retroactively--and indeed the same-day decision in Schriro v. Summerlin, 2004 U.S. LEXIS 4574, 72 U.S.L.W. 4561 (U.S. June 24, 2004) teaches the strong unlikelihood that Blakely will hereafter be given retroactive effect.

"In sum, 'it appears that an evidentiary hearing is not required' (Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts), so that the same rule calls for this Court to 'make such disposition of the motion as justice dictates.' That justice-dictated disposition is the denial of Traeger's entire Section 2255 motion, and this Court so orders."

UNITED STATES v. TRAEGER, 2004 U.S. Dist. LEXIS 12901 (D. Ill., 2004)

Once again, this decision seems to confirm the general consensus that "Blakely" will not be applicable retroactively to cases on collateral review. At the very least, it demonstrates that anyone seeking to overcome the one-year statute of limitations imposed by Sec. 2255 will face an uphill (and likely fruitless) battle.

Posted by: C. Mahon | Jul 14, 2004 10:42:53 AM

I am a paralegal in a Criminal Defense practice here in Washington State. One of the concerns I've seen expressed by prosecutors is the high cost of resentencing, should any degree of retroactivity be found to be mandated by Blakely. This brings to mind the holding of the Supremes in Rhodes v. Chapman, 101 S.Ct. 2392 at 2403 (1981), in which they stated, "Humane considerations and constitutional requirements are not, in this day, to be measured or limited by dollar considerations." If, as they ruled, consideration of untried and unproven factors by the court is a Sixth Amendment violation, the fact that correcting the mistakes of the past will be costly has little or no relevence beyond finding the most economically effective way to provide a remedy which will withstand constitutional scrutiny.

Posted by: Eliyahu Rooff | Jul 14, 2004 3:06:36 PM

I am a 2L summer associate at a defense firm. I am looking for the proper way to raise "Blakely" on appeal if the issue of sentencing enhancements was not preserved for appeal at the trial court.

In the "Thoughts and holdings on Blakely retroactivity" you said, "Consequently, a number of commentators have astutely noted that Shriro does not conclusively foreclose retroactive application of Blakely".

Could you please post a link or a citation to those statements/comments?

Posted by: Clark | Jul 15, 2004 12:47:06 PM

My son is an inmate in a Virginia prison. He was coerced into a deal based on some faulty claims made to him and me about the penalty for a felony murder case. He is innocent but was talked into accepting a plea in order to avoid a life sentence. His deal with the prosecutors was the midrange of a 5-20 years sentence, which was 7-11. The judge gave him 20 years, with five forgiven, which obviously exceeded the sentencing guidelines. The question here is primarily one that relates to State sentencing cases, as opposed to Federal cases. What in your opinion leads you to believe that the Blakely decision might apply to State cases as well?

Posted by: Ron | Jul 21, 2004 1:15:11 PM

I'm a prisoner in the state of Colorado and had taken a plea to two forgery charges. The District Attorney wanted me to serve seven years, so for the first class 5 felony I had to plead guilty to 3 years the top end of the presumptive range, on the second class five felony I had to pead guilty to 4 years one year over the presumptive range (no reason was given as to the aggrevation) The DA just had it in her mind that I needed to do 7 years.(the sentences were to run consecutively).

Is there any possibility that this ruling could help me in any way? My manditory release date is 8/../05 if I remain report free.Then I have to serve 2 years manditory parole.

Is a habeas petition the way to go?


Posted by: mark peterson | Jul 21, 2004 1:31:26 PM

I am a former criminal defense lawyer with 25 years of experience in both state and federal courts. I spent 4 years in prison as the result of a DUI accident with bodily injury. I now consult with a number of criminal attorneys and use Westlaw for my research. I have been working on a lengthy federal securities fraud case and following all of the cases emerging from Blakely. It appears to me that for many defendants, trial may be the best option since many, if not all of the sentencing enhancements would be irrelevant in a jury trial. I realize that one lower court has tried to submet separate jury forms but, for other reasons, this didn't fly. Another unanwered question in my mind is, if the defendant goes to trial and evidence is adduced as to the enhancement factor, then is the judge entitled under a guilty verdict to find that the enhancement is proven?

Posted by: ed leinster | Jul 21, 2004 4:03:06 PM

I am an Account Executive who was sentenced for a car accident back in Dec. of 1996. I was given a 2 year presumptive sentence in a Plea Bargain agreement bu my public defender never warned me of a sentence enhancement based on the aggravators the D.A. filed against me. On top of my two years presumptive, the judge found three aggravators by preponderance of evidence and increased my sentence to an extra two years. I served the presumptive two years and am STILL on probation for the suspendid two years of aggravated time. I truly hope Blakely is retroactive. I would have never agreed to a plea bargain had I known the judge was empowered to increase my sentence beyond the presumptive without me conceding or stipulating to the aggravators. This was almost ten years ago and I am still on a ten year probation (with the aggravated two years of suspendid time) until 2008.) I want my life back, especially now that I know the sentence was unconstitutional. I don't see this as procedural, my sentence was an abuse of judicial power and an illegal sentencing practice.

Posted by: Joshua Harrison | Jul 21, 2004 11:46:22 PM

I am a defense attorney in Minnesota. The Eighth Circuit just held that Blakely invalidates the Federal Guidelines. (U.S. v. Michael Alan Mooney, 7-23-04). Does anyone have a Rule 2255 motion/memo they would care to email to me? I have 2 or three post conviction possibilities. Many thanks.

Posted by: Frederic Bruno & Associates | Jul 24, 2004 8:52:17 AM

My dad is in federal prison. He was sentenced for manufacturing then recieved enhancements for having weapons. He is hoping that the Blakely ruling will have an effect on him since the weapons had nothing to do with what he plead guilty to.I don't really understand what is going on with the blakely case and get confused when reading guidelines, law terms, ect. What is your opinion on how this will effect him or if it will at all?

Posted by: Angel | Jul 24, 2004 4:41:07 PM

My son was sentenced to 20 years for a crime he did not commit, but for which he accepted a plea based on his attorneys recommendations. This is not a federal case, but a felony murder case in Virginia. The guideline for this crime is 9-11 years. The judge gave no reason for his sentence in spite of the fact that witnesses (from the victims family) gave testimony against the victim's mother. Probably in recognition of this fact, he reduced the 20 year sentence (the maximum) to 15 with the last five years under a treatment plan. All appeals up to and including the US Supreme Court have been rejected. Be that as it may. How will this case be treated under the Blakely ruling? Retroactivity is the question at hand here. My son has served eight and one half years which is about where the guideline would be if it were applied.

Posted by: Ron | Dec 22, 2004 11:44:39 AM

I am a paralegal specializing in postconviction proceedings in Florida. At this time I am alleging a claim that Blakely effect Florida's habitual felony offender act because (other than prior conviction) the judge, not jury make the factual findings as required by law of the enhancement of a defendant's sentence. Would anyone give me some comments on this subject.

Posted by: Christopher Hall | Jan 18, 2005 8:58:31 PM

My family was in indicted in 1988 on conspiracy charges and all 27 individuals were all given very hard sentences. Some were first time felonys and has never been to jail in there lives and was sentence to life in prison with no chances of parole. which I feel was unjust. And I want to know if the ruling from booker, and fanfan is going to help free my family and exactly what is retroactivity.my family has been going on 17 years.

Posted by: lannette | Apr 3, 2005 6:19:52 PM

I AM IN SERIOUS NEED OF HELP MY FIANCE IS SERVING TWO SENTENCES BOTH WERE SUPPOSSED TO RUN CONCURRANT BUT NOW THE DEPARTMENT OF CORRECTIONS (HERE IN PA) ARE TELLING HIM IT'S DOUBLE DIPPING AND THAT THE JUDGE SENTENCED HIM ILLEGALLY. DON'T KNOW WHAT ELSE TO DO

Posted by: DANIELE | Nov 2, 2005 1:34:17 PM

Iam in desperate need of some answers. My husband is serving a 3 1/2 year sentence for a class C violent burglary felony. He told me that there are certain programs that he could do that he could be out alot sooner then that. I would like to know what these prgrams are and the earliest he could be out. I hear that you have to do 85% of your time but I know jails are crowded and a lot of people get out way before doing 85% of there time, so can you please get back to me as soon as you can.

Posted by: Daniella | Feb 19, 2006 3:46:28 PM

I am a paraprofessional in education. I am also a mother of a daughter who was recently sentenced in a conspiracy for dealing drugs. My daughter was sentenced to 21 yrs mandatory without parole, she is a first time offender. She has applied for an appeal to see if she can get two enchancments dropped. Does this ever happen in the federal court system? Is there a chance parole will return in the near future for first timers? Please help me understannd. Can someone tell me what I can do to help fight for parole? Tahnk you

Posted by: Donna | May 25, 2006 4:23:43 PM

My nephew, who has never been in any trouble ata all, and served honorably in the US Navy, was convicted of rape based on the testimony of a plea-bargaining felon (his brother), and perjured testimony of the alleged victim. My nephew was sentenced on 15 counts, to 4 - 12 years on each count to run consecutively. Everyone involved in this travesty has moved on with their lives except him, who has now been incarcerated for the last 14.5 years in various NYS DOC facilities. I have been doing research on sentencing guidelines, because this sentence is excessive from my perspective, and possibly illegal. Can anyone out there help? And how does Blakely relate to this sentence? We can use, and desperately require any assistance in this matter. Thank you.

Posted by: Phillip | Jul 22, 2006 10:06:03 AM

My fiancee was sentenced to 15 years, he was sentenced as an habitual offender and a violent career criminal. He was a very young man on drugs and was attempting to steal a radio out of a car. The car was unlocked. Nothing was taken because the owner came out of his home and my fiancee ran. Nothing was taken nothing was damaged. He had a prior record of stealing a car. He has done 8 1/2 years in prison. Is it constitutional to sentence a 3rd degree felony to 15 years under the gord act? Please help me in finding out why a murderer can get 10 years and he was given 15 for opening a car door. Also the judge imposed the sentence. I feel this was an illegal sentence (double jeopardy). Also does the judge have the right to impose such a sentence without a jury. Thank you for any help you can give me.

Posted by: Tina | Jul 25, 2006 10:39:35 PM

im a student and i am being investagated for theft at a local wal-mart. im 16 years of age and was wondering what i might get if they charge me with 2 misdemenors or 1 felony

Posted by: tyler | Nov 3, 2006 10:54:16 AM

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Posted by: laptop battery | Oct 14, 2008 5:17:44 AM

At this time I am alleging a claim that Blakely effect Florida's habitual felony offender act because (other than prior conviction) the judge, not jury make the factual findings as required by law of the enhancement of a defendant's sentence.

Posted by: Robe de Soirée 2013 | Dec 12, 2012 10:32:59 PM

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